Johnson v. Consolidated Gas, Electric Light & Power Co.

Collins, J., delivered the opinion of the Court. This is an appeal by William Fell Johnson, life tenant, and certain remaindermen, appellants, from a judgment on inquisition made absolute in favor of the appellants for the sum of $16,103, interest and costs, for the right to condemn certain property in Baltimore County. As provided by the inquisition, among other things was the perpetual right-of-way for an electric light and power line over the property of the appellants to be placed on three transmission towers. Each of the three towers will occupy a maximum space of 29 feet by 29 feet and have a maximum height of 117 feet and carry a 110,000-volt electric light and power line.

The Consolidated Gas, Electric Light & Power Company of Baltimore, the appellee, is given the right to trim and cut all trees on the said right-of-way and any trees adjacent to and within 75 feet of said right-of-way to prevent interference with the electric light and power wires. The appellants are given the right to use that part of the right-of-way which is not occupied by the transmission line towers. Appellants contend, contrary to the ruling of the trial court in refusing certain prayers of the appellants, (1) that under the provisions of 1939 Code, Article 23, Section 296, the appellee’s power of condemnation is subject to the condition that its poles and wires “shall not be so constructed as to * * * interfere with the convenience of any land owner more than is unavoidable” and that appellants are thereby entitled to show by way of defense, “(a) That serious and irreparable damage will be caused by the proposed overhead transmission line through high-class residential property such as the Green Spring Valley; (b) That such damage will be ⁴⁵⁸ wholly avoided if the line is placed underground; and (c) That it is practicable and not unduly expensive to place- the line underground.” (2) The second contention of the appellants is that the damage from the entire transmission line is not limited to consideration of those portions placed on their property, since the entire transmission line is a single unit, and that they are entitled to damages from the construction of the proposed transmission line across the property of others because their property would be damaged by the sight of the transmission line on the property of others. It is stipulated in the record that the appellee has the powers conferred by Article 23, Section 335, of the Code of 1939 of the Public General Laws of Maryland.

Appellee admits that its power of condemnation is derived under Article 23, Section 335, supra, Acts of 1886, Chapter 161. This section provides in part as follows: “Any of the corporations formed under class thirteen, section 28 of this article, as codified by the Code of 1904, shall have the power which is conferred upon telegraph companies incorporated under this article by section 296, and may construct and lay any part of its line or lines underground on any route for which it is authorized to construct such lines in whole or in part, above ground, and such corporation may acquire by condemnation any property or right whatsoever necessary for its purposes in its discretion, either in fee simple or the use thereof in fee simple, or for a less estate * * *.” The appellants contend and the appellee denies that the power of condemnation of the appellee given under Section 335 is narrowed down to the interpretation of Article 23, Section 296, 1939 Code, Acts of 1868, Chapter 471, Section 128. That section provides in part as follows: “It may construct a line or lines of telegraph through this State, or from or to any point or points within this State, or upon the boundaries thereof, and along and upon any postal roads and postal routes, roads, streets ⁴⁵⁹ and highways, or cross any of the bridges or waters within the limits of this State, by the erection of the necessary fixtures, including posts, piers or abutments for sustaining the cords or wires of such lines, without their being deemed a public nuisance, or subject to be abated by any private party; provided, the same shall not be so constructed as to incommode injuriously the public use of said postal roads or postal routes, roads, highways and bridges or injuriously interrupt the navigation of said waters, or interfere with the convenience of any land owner more than is unavoidable; * * *.” At the time of the passage of the Acts of 1868, Article 23, Section 296, supra, underground electric lines were not in existence. By Article 23, Section 335, supra, corporations, such as the appellee, were given power to construct their lines underground, to “acquire by condemnation any property or right whatsoever necessary for its purposes in its discretion.” In the opinion of this Court the grant in the statute of “the power which is conferred upon telegraph companies incorporated under this article by section 296” was the grant to corporations such as the appellee of the franchise or rights to construct lines along roads, streets, and highways, across any of the bridges or waters within the State without the said corporation being deemed a public nuisance; provided “the same shall not be so constructed as to incommode injuriously the public use of said postal roads or postal routes, roads, highways and bridges or injuriously interrupt the navigation of said waters, or interfere with the convenience of any land owner more than is unavoidable; * * In other words, the limitations just above quoted are limitations on the franchise rights and not limitations on the condemnation powers.

We here use the word franchise to describe a grant by a state to some person, natural or corporate, of some privilege or power, not common to the people generally, in respect to property or rights subject to the control of the state or of some agency of the state. Huebschmann v. Grand Co., 166 Md. 615, 622 , 172 A. 227 . ⁴⁶⁰ That these corporations are liable for proper compensation for these franchise rights has been many times stated by this Court. Postal Telegraph Cable Co. v. State Roads Commission, 127 Md. 243, 246 , 96 A. 439 ; Chesapeake & Potomac Tel. Co. v. State Roads Commission, 134 Md. 1, 4 , 106 A. 257 ; Baltimore v. Chesapeake & Potomac Telephone Co., 142 Md. 79, 82 , 120 A. 229 ; American Telegraph & Telephone Co. v. State Roads Commission, 134 Md. 11, 14 , 106 A. 260 ; Chesapeake & Potomac Telephone Co. of Baltimore City v. State Roads Commission, 132 Md. 194, 197 , 103 A. 447 .

That the limitation that the use must not injuriously interrupt the navigation of waters or interfere with the convenience of any land owner more than is unavoidable, is a limitation on franchise rights rather than on the power of condemnation, is borne out by the following quotation from the case of State; for Use of Hoffman v. Potomac Edison Co., 166 Md. 138 , at page 146, 170 A. 568 , at page 571, where this Court said: “ ‘The statute authorizing corporations to construct their lines along and upon the highways and across the bridges and waters of the state, by. the erection of the necessary fixtures, provides that they “shall not be so constructed as to incommode injuriously the public use of said postal roads or postal routes, roads, highways and bridges, or injuriously interrupt the navigation of said waters, or interfere with the convenience of any landowner more than is unavoidable.” Code, 1904, Art. 23, Sec. 324; Annotated Code, 1912, Art 23, Sec. 359’.” Now Article 23, Section 296, 1939 Code, supra. “ ‘* * * * The appellant’s brief contains a suggestion that the prohibition of the act was merely that the public use of the roads shall not be injuriously incommoded more than is unavoidable. We do not so construe the meaning of the statute. The term “unavoidable” is plainly intended to qualify only the restriction upon interference with the convenience of landowners and has no relation to the provision against incommoding the public use, to. which,the adverb “injuriously” is applied’.” Phelps v. ⁴⁶¹ Board of Com’rs of Howard County, 117 Md. 175, 180 , 82 A. 1058 ; Earp v. Phelps, 120 Md. 282, 287 , 87 A. 806 . The Act of 1886, passed after the Act of 1868, in addition to other things, gave to corporations in the classification of appellee condemnation powers and added the requirements of “necessity.” In the case before this Court, as the property in question is private property, the only limitation therefore upon the appellee’s right to condemn is whether the property right sought to be condemned is “necessary for its purpose in its discretion.” There is no contention by the appellants that an electric line at the location here contemplated is not necessary.

They contend, however, that such line should be placed underground and not overhead. The question of necessity is one for the court to decide. Ordinarily the question of public interest is legislative rather than judicial. It was said in Murphy v. State Roads Commission, 159 Md. 7 , at page 15, 149 A. 566 , at page 570, quoting from Nichols, Eminent Domain, Secs. 333, 334: “ ‘The legislature may, and usually does, delegate the power of selecting the land to be condemned to the public agent that is to do the work.

In such case it makes little if any difference whether the grant of authority is in terms limited to such land as is “necessary” for the purpose in view, for a general grant of authority carries the same limitation by implication and in either case the necessity is primarily for the party taking, and not for the courts to decide, and the decision of such party is final as long as it acts reasonably and in good faith. If the land is of some use to it in carrying out its public object, the degree of necessity is its own affair. Whether there is any necessity whatever to justify the taking is, however, a judicial question’.” Matthaei v. Housing Authority, 177 Md. 506, 514 , 9 A. 2d 835 ; Riden v. Philadelphia, B. & W. R. Co., 182 Md. 336, 345 , 35 A. 2d 99 . It was further said in the case of Webster v. Susquehanna Pole Line Co., 112 Md. 416 , at page 433, 76 A. ⁴⁶² 254, at page 260, 21 Ann. Cas. 357, “But it is further contended by the appellant that there is no provision of law determining the necessity of the taking, either by the jury of inquisition or by a Court of competent jurisdiction, and the taking therefore is without due process of law, both under the Constitution of the state, and the fourteenth amendment to the Constitution of the United States.

But in New Central Coal Co. v. George’s Creek Coal Co., 37 Md. 565 , speaking of the necessity of taking, the Court said: ‘It is proper that these questions be referred exclusively to the court specially clothed with jurisdiction and power to pass on the propriety of the inquisition of condemnation. * * The necessity for taking does not have to be absolute but only reasonable. The electric line here proposed is to connect with another line which has been constructed known as the “ring” line. The construction of this ring line was contested in the case of Realty Improvement Co. v. Consolidated Gas, Electric Light & Power Co., 156 Md. 581 , 144 A. 710 . It was said in that case, at pages 585 and 586 of 156 Md., at page 712 of 144 A.: “And the explanation of purposes given in the testimony is to the effect that this line is to serve sections of Baltimore County with light and power, which will clearly be of utility and convenience to the public, and which cannot otherwise be so economically provided; and such an advantage to the public is sufficient for a finding of the requisite public necessity for the exercise of the power of eminent domain. ‘It is enough, if it clearly appears, that the application of such private property to the proposed new use will be attended by a material public benefit which would not otherwise be so immediately and effectually produced.’ Bellona Co.’s Case, 3 Bland. 442, 451; New Central [Coal] Co. v. George’s Creek Co., 37 Md. [537], 557, 560; Webster v. Susquehanna Pole Line Co., 112 Md. 416 , 76 A. 254 , 21 Ann. Cas. 357.” The appellee here, under the power of eminent domain, has no right to take private property arbitrarily or ⁴⁶³ utterly at variance with its delegated power and so as to inflict unnecessary damage upon the property owner.

In New Central Coal Co. v. George’s Creek Coal & Iron Co., supra, it was emphasized, in referring to the power of eminent domain: “To justify the exercise of this extreme power, * * * the party claiming the right to the exercise of the power should be required to show at least a reasonable degree of necessity for its exercise. Any rule less strict than this, with the large and almost indiscriminate delegation of the right to corporations, would likely lead to oppression, and the sacrific of private right to corporate power.” Riden v. Philadelphia, B. & W. R. R. Co., supra, 182 Md. 345, 346 , 35 A. 2d 99 ; Huffman v. State Roads Commission, 152 Md. 566, 583 , 137 A. 358 . The court in passing upon whether the condemnation sought is reasonably necessary is limited in its inquiry as to whether the discretion exercised by the party condemning is honestly exercised. In the case of Murphy v. State Roads Commission, supra, where condemnation of a road was sought by the State Roads Commission, this Court said, at page 18 of 159 Md., at page 571 of 149 A.: “The engineers for the commission testified that the sour apple tree route was safer, more economical, and more convenient.

While they were contradicted by appellant’s witnesses, it is not our purpose to weigh or resolve that conflict, since our reference to the evidence has not been to decide whether the commission exercised the discretion reposed in it wisely, but whether it exercised it honestly. And as in our opinion the evidence clearly shows that the commission did not select the proposed route until it had examined and carefully considered such relevant facts as should have affected its conclusion, we find no abuse of the discretion vested in it, and it will not be reviewed.” Unless the discretion of the condemning agency as to reasonable necessity is wrongfully, arbitrarily, or oppressively exercised, that discretion cannot be controlled or reviewed by the Court, State Roads Commission v. ⁴⁶⁴ Redmiles, 176 Md. 677, 681 , 6 A. 2d 551 . The courts are not empowered to oppose their judgment to that of the condemning authority. Matthaei v. Housing Authority, supra, 177 Md. at page 514 , 9 A. 2d 835 .

The trial court, by the granting of the first prayer, passed upon the necessity of the condemnation. By that prayer the jury was instructed as follows: “The Court instructs the Jury that its verdict shall be for the Plaintiff on the right to condemn the right of way easement described in the Petition in this case, and that the only question before the Jury is the amount of damages to be awarded to the Defendants for the taking therefor.” Johnson v. City of Baltimore, 158 Md. 93, 97, 106 , 148 A. 209 , 66 A. L. R. 1488. Therefore one of the questions before this Court is whether the trial judge was correct in holding that the appellee honestly exercised its discretion in determining the reasonable necessity of constructing the electric line here sought to be constructed over the land of the appellants as an overhead line rather than underground. The appellants claim that this proposed line will despoil a large part of the Green Spring Valley and adjacent areas of Baltimore County.

Further that such an overhead line destroys the beauty of the area and is dangerous and that the development of property and the value thereof would be greatly curtailed by the presence of a steel power line on a wide right-of-way and that such damage will be wholly avoided if the line is placed underground. The testimony of the appellee contained the following statements: The line traversed open countryside. It is an ordinary 110 kv tower line practically identical with its fifty-mile “ring” line passed on by this Court in the cases of Realty Improvement Co. v. Consolidated Gas, Elec. Light & Power Co. of Baltimore, 1929, supra; Schnepfe v. Consolidated Gas, Elec.

Light & Power Co. of Baltimore, 1933, 164 Md. 630 , 165 A. 889 . It has 150 miles of this line in operation. Appellee never knew of anyone being injured by those lines. The public ⁴⁶⁵ service in 83 square miles of territory requires more power in that area.

The only practical transmission line is the overhead one over the route proposed. The location, operation, continuity of supply, economy, and overall system planning are all best promoted by the present plan. As a result of a complaint made, the chief engineer of the Public Service Commission personally inspected the proposed route and examined other routes. He reported that the proposed route is by far the best selection.

Consideration was given to the substitution of an underground line in place of the proposed overhead system and in his report he said: “It is difficult to justify the expense of such a substitution.” According to his estimate the cost of the underground route would be approximately $98,000 per mile, which is approximately the total amount proposed to be spent for the 5.8 miles of overhead line. He recommended that the construction of the line as